Privacy, Property, and Public Sex
74 Pages Posted: 9 Feb 2008 Last revised: 10 Mar 2008
This Article argues that the constitutional right to sexual liberty should include the right to engage in public sex under certain circumstances. In doing so, the Article contends that the right to sexual liberty should not, as the Supreme Court has held, be site-dependent, that is, its scope should not be limited to sexual conduct that takes place in the home and other private places. The Article reviews the sociological literature on public sex to explain how sexual actors frequently and effectively privatize public sex sites. By analogizing to the privacy protection afforded by the Fourth Amendment, the Article argues that what should ultimately matter in determining the scope of the right to sexual liberty under the Due Process Clause is not where the sex takes place but whether the sexual actors' expectations of privacy are reasonable. In the end, the Article seeks to problematize the seemingly intuitive notion that, in matters of sex and sexuality, the concept of privacy is inextricably linked to geographic sites that are private.
Keywords: Privacy, Due Process, Sexual Liberty, Right to Exclude
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